Affirmed and Memorandum Opinion filed July 17 , 2014

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 12

- 00894

- CR

XAVIER ALEXANDER AUS TIN , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 174th District Court

Harris County, Texas Trial Court Cause No. 1252434

M E M O R A N D U M O P I N I O N

A jury convicted appellant
, Xavier Alexander Austin
, of capital murder. The trial court sentenced appellant to life in prison without the possibility of parole. Appellant raises five issues on appeal. We affirm.

B ACKGROUND On the morning of June 3, 2009, a robbery at a convenience store resulted in
the s hooting deaths of two store clerks

. P olice were subsequently tipped off to a2

possible suspect, Minh Truong. Truong gave police the names of Casey Carmon, Herbert Nash, and someone nicknamed “Fui.” Police investigation ultimately suggested appellant was the individual known as “Fui

. ” Appellant was located and voluntarily gave a statement to police. Appellant identified Truong, Carmon and Nash in photo arrays.

A ccording to his statement, a ppellant drove all three in a white Crown
Victoria provided by Nash to the convenience store and parked the car out of view
of the store . Nash stayed in the car; Truong and Carmon went into the store
, and
then ran out

. Carmon was saying “I shot ‘em,” and appellant saw he had a little

gun . Appellant sta ted he did not see the gun before and no one else had a gun. Appellant admitted he knew they were going to rob the store but said he did not know they were going to shoot anyone. Appellant did not know whether the clerks were dead or alive when they left . Appellant denied that he and Nash sent the
“kids” in to rob the store.
Truong testified for the State. According to Truong, Nash was the one who planned the crime and acquired the gun. A ppellant was the driver and chose Carmon, who Truong knew only as “Youngster,” to be the gunman. Truong’s role was to get the money and Carmon ’s was to hold the gun. Truong testified the car pulled in on the back side of the store to avoid being seen. Appellant was driving,
Na sh was in the front passenger seat
, and Carmon was in the back seat behind appellant when Nash took the gun out of the glove compartment, removed the white cloth around it, and handed it to Carmon. Carmon cocked the gun and asked, “how we going to do this ?” Carmon was told “What you do is you go in, you hold the people down, and what I do, I go in there, grab the money.”
Truong testified that when they entered the store, Carmon pointed the gun at the head of the clerk at the register
, and the clerk went for the gun. They wrestled3

for it
, Carmon fired a few shots, and the clerk fell to the ground. Truong did not grab the money, but took off running to the door. He saw the other clerk and thought he was reaching for a gun. Truong screamed at Carmon “that dude’s got a

gun , ” and Carmon fired shots at the second clerk. They both ran out to the car and

a ppellant drove everyone away from the scene “[a]s fast as he could.” According to Truong, the arrangement was to split the money four ways. They drove back to appellant’s house. Truong testified Nash and appellant were disappointed because Truong was supposed to get the money regardless of whether anyone was shot.
Appellant was charged with capital murder based on the law of parties and Truong was id entified as an accomplice as a matter of law. The jury found appellant guilty.

A NALYSIS In his first issue, appellant claims his substantive rights were violated when the State was allowed to repeatedly bolster the credibility of its accomplice
witness , T ruong, with inadmissible testimony. Appellant’s second issue argues the trial court erred in denying his objection to the prosecution’s bolstering of Truong.
Appellant refers the court to only one objection to bolstering. The record reflects the objectio n was made after the question was answered by Truong

. A defendant must make a timely objection t o preserve error. See Tex. R. App. P. 33.1(a); Lagrone v. State , 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). “ If a party fails to object until after an objec tionable question has been asked and answered, and the party does not show a legitimate reason justifying the delay, the objection is un timely and any error is waived.” Wright v. State , 374 S.W.3d 564, 582 (Tex. App.

— Houston [14th Dist.] 2012, pet. ref ’ d)

. Because appellant ’ s objection was untimely, it was insufficient to preserve error. See Nino v. State, 223 S.W.3d 749, 755 (Tex. App.

— Houston [14th Dist.] 2007, no pet.)

.4

Appellant’s other complaints of bolstering refer to testimony to which no objectio n was lodged. Accordingly, nothing is presented for our review. See Tex. R. App. P. 33.1(a). Issues one and two are overruled.

I n i ssue three , appellant asserts the trial court erred in overruling his objection to the State’s witness speculating as to a ppellant’s intentions. The record
reflects the objection was made after the question was answered by the witness. As noted above, an untimely objection fails to preserve error. See Tex. R. App. P. 33.1(a) ; Lagrone , 942 S.W.2d at 618 ; and Wright , 374 S.W .3d at 582 . I ssue three
is overruled. Appellant’s fourth and fifth issue s claim the trial court erred in overruling objection s made during the State’s redirect examination of Investigator Dan
Arnold . T he following exchange occurred:
Q. [the State]: Did you ha ve to ask [Minh ] Truong leading questions to get him to tell you what he knew about this case? [Defense Counsel]: Objection. That’s improper
, Judge. Also hearsay. [The State]: Your Honor, if I may. It’s in response to defense counsel’s questionin g about

– THE COURT: Overruled. Go ahead

. Q. [the State]: Did you feel it was n ecessary to ask [Mi n h ] Tru o ng leading questions to get him to share with you what he knew about the murder of these men on June 3 rd ? A: Not at all, not Mr. Tru o ng. Q. [the State]: If you had to compare his cooperativeness with Xavier Austin’s cooperativeness during your interviews, who would you say was more cooperative? [Defense Counsel]: Objection. Relevance, Judge. Also calls for speculation. [The State]: Your Honor, i f I may. He opened the door by asking about what [Minh ] Truong told him.5

THE COURT: Overruled. A: I would judge Mr. Truong’s cooperation far exceeded Mr. Austin’s. In his fourth issue, appellant claims the trial court erred in denying his objection to t he State’s question about whether Arnold had to ask Truong leading questions. Appellant asserts in issue five that the trial court erred in denying his objection to the State’s query as to whether Truong was more cooperative than appellant. Appellant’s b rief argues the questions implied the jury should compare the cooperativeness of Truong to appellant and as such were not relevant and speculative.
Regardless of the propriety of the questions and their relevance to an issue in this case, the record does not show that any error in overruling defense counsel’s objections would be reversible. Appellant concedes the alleged error is non

constitutional. We disregard non

- constitutional error unless it affected a substantial right. Tex. R. App . P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s
verdict. See Motilla v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
In this case, not only Truong’s testimony but also appellant’s own statement
establish ed appellant’s participation in the robbery : appellant said he knew Truong and Carmon intended to rob the store, he parked the car in a location that could not
be seen from inside the store, and he waited there while the robbery was committed and then served as the get a way driver

. In the context of the entire case against appellant, we conclude that the trial court’s error, if any, did not have a substantial or injurious effect on the jury’s verdict and did not affect appellant’s substantial rights. See King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Thus, any

error does not provide a basis for reversal

. See Tex. R. A pp. P. 44.2(b).
A ppellant’s fourth and fifth issues are overruled.6

Having overruled all of appellant’s issues, t he judgment of the trial court is
affirmed.

/s/ J. Brett Busby Justice

Panel consists of Justices McCally, Busby, and Donovan. Do Not Publish

— Tex. R. App. P

. 47.2( b).